CONSTITUTIONAL LIMITS ON CRIMINAL PRESUMPTIONS AS AN EXPRESSION OF CHANGING CONC(1).pdf

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1 University of Oregon From the SelectedWorks of Leslie J. Harris 1986 CONSTITUTIONAL LIMITS ON CRIMINAL PRESUMPTIONS AS AN EXPRESSION OF CHANGING CONC(1).pdf Leslie J. Harris Available at:

2 77 J. Crim. L. & Criminology 308 Journal of Criminal Law and Criminology Summer, 1986 Criminal Law CONSTITUTIONAL LIMITS ON CRIMINAL PRESUMPTIONS AS AN EXPRESSION OF CHANGING CONCEPTS OF FUNDAMENTAL FAIRNESS Leslie J. Harris a1 Copyright 1986 by the Northwestern University School of Law; Leslie J. Harris Many puzzle-loving lawyers have been drawn into the intricacies of the law of burdens of proof, presumptions and inferences. Even though this area of the law determines the outcome of comparatively few disputes, these topics are extraordinarily interesting because they are vehicles for discussing two issues basic to the justice system. The first is how decision-making power should be divided between the judge and the jury. The second is who should lose if some disputed fact is not clear. Allocations of the burdens of proof and presumptions have been challenged under the federal Constitution since the nineteenth century. 1 Although some of the cases were civil, the majority, especially since the mid-1960s, have been criminal. These cases do not address directly the two issues described above, but they deal with related questions. Sometimes the Supreme Court and scholars have used presumption cases to discuss the nature of legislative, as opposed to judicial, authority to determine how a trial should be conducted. In particular, statutory presumptions have been challenged as usurping the trial judge s authority to determine when a party has presented sufficient evidence to get to the jury. The Court and the commentators have also used cases regarding the weight and *309 allocation of the burdens of proof and presumptions to discuss indirectly limits on substantive law, particularly criminal law. The purely evidentiary aspects of the law of burdens of proof and presumptions is complicated enough; when the constitutional complexities are added, confusion often follows. Efforts to understand how courts have handled the constitutional issues solely in terms of doctrine or the relationships between the legislature, judges and juries are frustrating and unsatisfactory. The cases and commentary about constitutional limits on presumptions are best understood as expressions of, and factors in, the creation of the changing concept of what due process is all about. The purposes of this article are to sketch the relationship between the limits on presumptions and the meaning of due process over the twentieth century and within this framework to analyze a half dozen cases decided by the Supreme Court since These cases significantly reform the constitutional limits on the allocation of the burdens of proof, presumptions and inferences in criminal cases. First this article uses evidence law concepts to provide a background for the constitutional discussion that follows. It defines terms and describes the relationship of presumptions and inferences to the burdens of proof and how courts and legislatures have traditionally used these devices to reshape the substantive law and alter the distribution of power between the judge and jury. The next section traces the development of the constitutional law of presumptions and of burdens of proof through the early 1970s. The third section concludes that the most recent Supreme Court cases about presumptions, decided in the late 1970s and early 1980s, mean that in criminal cases legislatures may no longer enact statutory presumptions to satisfy or reallocate the burden of production or persuasion. The only effect that a statute which purports to create a presumption may have is to call attention to an inference that might be drawn from evidence. The cases have, however, left largely intact legislative authority to determine what factors are relevant to criminal liability and which party shall bear the burdens of proof on each

3 factor. Since the late 1960s the cases and commentators have based discussions of burdens of proof and presumptions on how they affect the trial s fact-finding function and the requirement of proof beyond a reasonable doubt in criminal cases. The final section of this article argues that the changes in the law that have resulted from this emphasis will have little effect on the resolution of the vast majority of criminal cases. The importance of these changes lies in their contribution to the prevailing vision of the meaning of due *310 process. Recent cases are part of a larger pattern of efforts to provide assurance that the criminal justice system is good at convicting only factually guilty people. While protecting innocent people from conviction has always been important, this goal is now particularly emphasized because of the increasingly harsh manner in which persons accused and convicted of crime are treated by the criminal justice system. 2 The discussions of the technical details of burdens of proof, presumptions and inferences are addressed to lawyers themselves and are designed to help convince them that most convicted persons are treated fairly and are in fact guilty. I. BURDENS OF PROOF AND EVIDENTIARY DEVICES THAT AFFECT THEM Two very basic issues are often discussed under the rubric of who should bear the burdens of production and persuasion and whether the burdens have been satisfied. The first is how decision-making power should be distributed between the judge and the jury, and the second is what the content of the underlying substantive law should be. Understanding the changing constitutional law of presumptions requires understanding how the two burdens of proof work and how two evidentiary devices, presumptions and inferences, may affect them. The party who bears the burden of production must produce enough evidence to satisfy that burden to get to the jury. If the evidence is insufficient, the judge will direct a verdict against that party. 3 The party who bears the burden of persuasion will lose the case if the factfinder is not convinced of the correctness of that party s assertions. 4 A presumption is a rule of law requiring that once some fact (a basic or proven fact) is established, some other fact at issue (the presumed fact) must be deemed true, at least provisionally. 5 In contrast, an inference is not a rule of law but rather is just a conclusion that may or may not be drawn that some fact is probably true. Whether such a conclusion is warranted depends on the persuasiveness of the evidence. Presumptions may be logical inferences that have hardened into law, or they may call for conclusions that are only plausible or even illogical, based on the evidence presented. Courts and legislatures create the latter kind of presumptions *311 expressly for the sake of manipulating one of the burdens of proof. The remainder of this part will explain how presumptions and inferences may affect the burdens of proof and consequently, either the distribution of decision-making power between judge and jury or the content of the underlying substantive law. A. EFFECT ON THE RELATIVE POWER OF JUDGE AND JURY A presumption can expressly alter the allocation of decision-making power between the judge and jury. Rules that define whether and how the judge may tell the jury about presumptions and inferences also affect this balance of power. The authority to resolve factual disputes is divided between the judge and jury initially by the substantive law, which determines who bears the burden of production on each issue. The judge decides whether a party has satisfied this burden. Once this burden is satisfied, the power to resolve the factual dispute moves to the jury. As a part of determining whether the burden has been satisfied, the judge draws inferences from the evidence. In contrast, of its own force a presumption at least satisfies the burden of production of the party in whose favor it runs. The judge has no authority to withhold a case from the jury on the grounds that there is insufficient evidence to support the presumed fact. Ordinarily a presumption additionally shifts the burden of production to the opposing party. If so, the judge is obligated to direct a verdict in favor of the party benefitted by the presumption unless the opposing party produces enough evidence to rebut the presumption. 6 In some jurisdictions a presumption may also shift the burden of persuasion to the opponent of the party in whose favor it runs. Since a shift of the burden of persuasion necessarily involves a shift of the

4 burden of production, such a presumption also alters the relative roles of judge and jury. Whether and how the judge tells the jury about presumptions and inferences also affects the relative decision-making power of judge and jury. In the early nineteenth century the jury in a criminal case was commonly permitted to determine questions of law as well *312 as fact. 7 This gave way to the present-day rule that judges determine the law and instruct the jury on it, with the accompanying formal expectation that the jury will follow the judge s instructions. 8 Juries are always instructed on the allocation and weight of the burden of persuasion, which means that juries are routinely instructed on presumptions that shift the burden of persuasion. Ordinarily the jury is not told about allocation of the burden of production, since the judge would not have sent the case to the jury if it had not been satisfied. Jurors may, however, hear about a presumption that only shifts the burden of production if the basic fact on which the presumption depends is itself in dispute. 9 In some jurisdictions the judge may also instruct the jury on the inferences it is permitted to draw. Some such instructions, like presumption instructions, are abstract and standardized. Others are ad hoc and tailored to the particular facts, in which case they are a form of comment on the evidence. Neither purports to bind the jury, but both are intended to, and probably do, make it more likely that the jury will draw the suggested conclusion, as instructions about presumptions also do. 10 Since the late 1800s the way that the judge instructs the jury has changed, moving from commentary in layperson s language tailored to the facts of the case to the current standardized, abstract, dry and boring instructions. 11 This development has tended to minimize *313 the amount of control the judge has over the jury. 12 In the federal courts and in some states judges retain the power to make comments tailored to the facts of the case, 13 but this power is rarely used. 14 B. EFFECT ON THE UNDERLYING SUBSTANTIVE LAW A presumption that shifts either the burden of production or persuasion on some element of a party s case redefines the parties cases, at least provisionally or conditionally. 15 For example, assume that illegal importation is an element of the government s case and that illegal importation is rebuttably presumed from proof of the defendant s possession. 16 When the prosecutor proves possession, illegal importation is deleted from the government s case, and legal importation becomes something for the defendant to prove. 17 When, if ever, the obligation to prove the importation s illegality will shift back to the prosecution depends on whether the presumption *314 merely shifts the burden of production or also the burden of persuasion. 18 If only the production burden is shifted, as soon as the defendant produces some evidence of legality the obligation returns to the prosecutor. If the burden of persuasion is shifted, it will not return to the prosecutor. Sometimes presumptions have more complex results. If the fact on which the presumption rests, in this example possession, is itself an element of the government s case, 19 the presumption has the effect just described. If possession were not an element, however, the government s case would be redefined so that, at least initially, it could choose to prove either illegal importation or possession. 20 Neither comments on the evidence nor instructed inferences alter the substantive law. Indeed, as part III infra discusses, statutory presumptions are today sometimes treated as inferences to avoid the constitutional problems that arise if a presumption shifts the burden of persuasion. Until the late 1960s, however, inferences and comments on the evidence were considered to be only tangentially related to presumptions because they are not rules of law, and both scholars and the courts were concerned with presumptions as law. 21 Often it is not clear whether a presumption s creator intended it to satisfy the burden of production only, to shift and satisfy it, or further to shift the burden of persuasion. Most of the scholarly literature about presumptions in the twentieth century has been devoted to this question. 22 Interpretation of a presumption is a matter of *315 local law not determined by the federal Constitution. The Constitution s due process clauses may, however, invalidate presumptions in certain situations, as the next section will discuss. II. THE CHANGING DUE PROCESS TEST FOR PRESUMPTIONS

5 The test for the constitutional validity of presumptions is an expression of, and therefore has varied with, the Supreme Court s changing conception of the meaning of due process, fundamental fairness. Understanding the development of the constitutional law of presumptions is difficult because the cases and commentators often take fundamentally different approaches without making their perspectives clear and without acknowledging the different perspectives of their predecessors. This problem manifests itself in discussions of three basic questions. The first involves the identity of what underlying issue is in dispute. There are two different groups of cases, each assuming that a different issue is key. In one group of cases, always involving statutory presumptions, a party claims that by enacting a presumption which satisfies or shifts a burden of proof the legislature has exceeded its authority to determine when evidence is sufficient to prove some fact. 23 In the other line of cases, which may concern statutory or common law presumptions, the issue is the fairness of *316 allocating a burden of proof to the defendant. 24 The two groups of cases have not developed as separate, distinct lines; instead, the Supreme Court has moved from one issue to the other, often without making the shift clear. The second question is what justifies the creation of a presumption, either statutory or common law. Through the years evidence scholars have argued that presumptions may be created for reasons unrelated to the factual likelihood that the presumed fact follows from the proven fact. 25 However, the first due process challenges to presumptions assumed that they purported to be logical inferences. In the early part of the century alternate interpretations of why presumptions are created appeared in the due process cases, but the presumption-as-standardized-inference interpretation has dominated since the 1940s. The third question is whether the Constitution requires a different treatment of presumptions in criminal cases and, if it does, why. For the first several years of this century courts and commentators usually did not see the problem of imperfect factfinding as significantly different in civil and criminal cases. 26 By the 1930s they drew *317 a definite distinction, and since then assumptions about the minimum conditions for a fair criminal trial have changed. Until fairly recently, the main consideration in allocating burdens of proof was enhancing the capacity of the trial to find historical truth; a presumption that shifted the burden of persuasion on some issues, even to a criminal defendant, was permitted if more factually accurate verdicts were likely. Until quite recently both the prosecution s obligation to prove guilt beyond a reasonable doubt and the prohibition of directed verdicts against criminal defendants were accepted; 27 they were not, however, understood as being necessarily related. 28 Further, requiring the defendant to prove defenses that are today interpreted as negating elements of the crime 29 was until fairly recently considered consistent with the prosecution s burden of proof. The two periods of the greatest number of Supreme Court presumption cases and the greatest amount of constitutional change were the late 1920s to early 1930s and the mid-1960s through the late 1970s, both time periods during which the criminal justice system generally was subject to increased constitutional scrutiny. The next two subsections discuss developments before 1965 and from 1965 to The third section describes and analyzes changes from the mid-1970s to the present. A TO THE MID-1960S During the first two decades of the twentieth century, when today s conception of what the burdens of proof are and how presumptions *318 relate to them was just beginning to be accepted, 30 only a few presumption cases went to the Supreme Court. At a time when the nature of due process limits on legislation in general was a major issue, the first important presumption case involved a statute applicable to personal injury suits against railroads. In 1910 in Mobile, Jackson and Kansas City Railroad v. Turnipseed 31 the Supreme Court held that due process permitted the legislature to enact presumptions affecting the process of proof if there was a rational connection between the proven and presumed facts, though it did not explain what this meant. The Court also said that a presumption could not deprive a party of a reasonable opportunity to submit to the jury all the facts bearing upon an issue. 32 Turnipseed was a civil case, but nothing suggested that criminal cases would be treated differently; in dicta, the Court said that the test applied to both. 33 The 1920s were marked by growing concern over the rise of organized crime and the perceived ineffectiveness of the criminal justice system to protect society. 34 As applied to criminal statutes containing presumptions, the rational connection

6 test was criticized for limiting too drastically legislative attempts to help prosecutors, 35 even though the test as applied was not very stringent. 36 Some commentators *319 even challenged the claim that the due process clause should be interpreted as requiring legislation to be rational. 37 Justice Oliver Wendell Holmes proposed an alternative to the rational connection test, now known as the greater includes the lesser test. 38 From his perspective the basic issue that presumptions raise is the extent of legislative authority over the process of proof. Justice Holmes and other proponents of this test argued that if the legislature could constitutionally impose liability on proof of the basic fact alone, it could have made the presumed fact irrelevant. Therefore, if liability on the basic fact were constitutional, the presumption was also necessarily constitutional. For example, in the 1928 case of Ferry v. Ramsey 39 a statute provided that if a bank officer accepted a deposit knowing the bank was insolvent, he was personally liable for the deposit. The statute also said that upon proof that the bank was insolvent at the time the deposit was received, the bank officer s knowledge of the insolvency and assent to the deposit were presumed. In Ferry, Holmes assumed that the legislature could make bank officers responsible for deposits whenever the bank accepted them, regardless of their knowledge of the bank s insolvency. From this he argued that if the legislature chose to impose liability only on officers who knew of the insolvency, it could also provide that this knowledge was presumed on proof of another fact, here, the bank s insolvency at the time of the deposit. A majority of the Court accepted this mode of analysis only once, in Ferry. 40 In the same year in a criminal case 41 the Court used *320 the rational connection test, and the next year the Court returned to the rational connection test in two civil cases without even mentioning Ferry. 42 Despite its logical appeal, the greater includes the lesser test has two major flaws. It denies that fair process is independently important, and it forces questions regarding the constitutionality of the underlying substantive law, which courts often wish to avoid, such as Ferry s focus on legislative authority to impose strict liability. In the late 1920s commentators generally favored the Ferry analysis. They routinely criticized the application of the rational connection test to criminal presumptions as providing inadequate protection to the public. These commentators argued that if a presumption satisfied either the rational connection or the greater includes the lesser test it should be valid. 43 Some even said that directed verdicts against criminal defendants should be permitted. 44 In a 1934 criminal case the Court adopted a third due process test for presumptions which reflected this emphasis on the struggle between criminals and society, expressly suggesting that due process imposes more stringent limits on presumptions in criminal than in civil cases. In Morrison v. California, 45 the Court no longer defined the basic issue as the nature of the limits on legislation that shapes the trial process. Instead, the key question was in what circumstances the state could fairly allocate a burden of proof to the defendant. The Court was influenced by Wigmore, who believed that a presumption could legitimately be created even if it did not express *321 a logical relationship between the presumed and proven facts. 46 He saw presumptions as a device for allocating rather than satisfying burdens of proof. 47 Consistent with this, the Morrison Court held that a presumption was constitutional either if it satisfied the rational connection test or if there were a manifest disparity in opportunity for access to evidence and shifting the burden would not subject the accused to hardship or oppression. 48 The Court rejected Ferry and its implication that process did not matter. 49 Instead, it linked the constitutionality of a presumption to the trial s fact-finding function if an innocent defendant might not be able to rebut the presumption it would fail, but neither was conviction of the guilty to be made too difficult. From today s perspective the manifest disparity of opportunity test seems prosecution-oriented, but in its social and legal context it was reasonably liberal. Morrison s concern for the innocent defendant reflected changes in the social climate and in how the criminal justice system was perceived. The country was deep in the Depression, and totalitarian regimes were rising in Europe. 50 Only two years before Morrison, in Powell v. Alabama, 51 the Court for the first time held that trying a *322 defendant without counsel could violate due process. Two years after Morrison, in Brown v. Mississippi, 52 the Court first held that the use of a coerced confession violates the fourteenth amendment due process clause. Law review articles began to express concern about the eagerness of legislators to help prosecutors in criminal cases, arguing in particular that presumptions should not be made to bear the entire weight of fighting organized crime and unscrupulous defense tactics. 53

7 Over the next decade the Court, along with much of the rest of government, struggled with the tension between individual rights and the claims of the community. 54 The debate over incorporation of the Bill of Rights into the due process clause of the fourteenth amendment began in earnest. 55 In the midst of World War II, the Court again turned to the constitutional limits on legislative presumptions. Tot v. United States 56 reaffirmed that due process requires that there be a rational connection between the proven and presumed facts. It characterized Morrison s manifest disparity of opportunity test as a mere corollary rather than an independent test of validity. 57 Commentators criticized the Court for holding the presumption *323 in Tot, which they said reallocated the burden of proof, to a standard appropriate only for presumptions that merely prescribed when circumstantial evidence satisfied a burden. 58 The Court was, however, well aware that the issue was limits on legislative authority to allocate burdens of proof; it rejected the Morrison test precisely because it could be interpreted to uphold a presumption which cast a burden onto a criminal defendant when the government had not sufficiently proven its case. 59 Tot was the first presumption case in which the Court clearly said that sometimes the Constitution requires the prosecution to bear the burden of proof on issues that the defendant is better able to prove, even though the prosecution may have great difficulty proving them. 60 During the 1950s, interest in the substantive criminal law increased, spurred by the promulgation of the Model Penal Code. 61 The Supreme Court did not deal directly with constitutional limits on substantive law, though its treatment of procedural questions, including presumptions, often seemed colored by this question. For *324 example, in Morissette v. United States, 62 decided in 1952, the Court avoided a challenge to the constitutionality of strict criminal liability by construing a federal statute to require proof of mens rea. In a less well-known part of the opinion, the Court focused on the wording of a jury instruction about a presumption to determine the constitutionality of the presumption. It held the instruction, which concerned inferring intent from a person s acts, unconstitutional because it was expressed as a conclusive presumption, violating the defendant s right to a hearing on the issue to which the presumption pertained. 63 At this time, the cases and commentaries began suggesting the possibility that the Constitution forbids giving the defendant the burden of persuasion on some issues. 64 In 1957 in Roviaro v. United States, 65 the Court expressly construed a statutory presumption that heroin was illegally imported with the defendant s knowledge upon proof of possession as shifting only the burden of production, not the burden of persuasion. 66 The opinion implied that shifting the latter burden raised issues that the Court was not ready to address. Over the next decade, the relationship of such statutory presumptions to the prosecution s burden of proof was repeatedly raised, as the next section will discuss. B TO 1975 The Court did not decide any other major presumption cases until the last half of the 1960s, when the Warren Court s criminal procedure revolution was in full flower. By this time courts and commentators usually characterized presumptions as at most shifting *325 the burden of production to defendants. 67 Presumptions were seen as a means of avoiding a directed verdict in favor of the defendant on elements difficult for the prosecution to prove. 68 From 1965 to 1970, the Court decided two pairs of important cases. The holdings in each pair are difficult to reconcile with each other and reveal uncertainty about how the due process requirement of fundamental fairness affects presumptions. In all the cases the Court said that rational connection was the due process test, but its application of the test changed markedly during these five years. In the first pair of cases, decided in 1965, the Court s conception of the fundamental issue returned, at least in part, to the limits on statutory presumptions that preempt judicial authority to determine whether a party has satisfied its burden of production. United States v. Gainey 69 upheld a statute which provided that a person present at a still was presumed to be carrying on a distillery business. Justice Black dissented, arguing that the legislation intruded on the domain of the trial court to determine, case by case, whether the prosecution s evidence satisfied the burden of production. 70 His interpretation was, of course, consistent with the usual understanding of the effect of presumptions. 71 The majority asserted that, despite *326 the presumption, the trial judge could direct a verdict against the prosecution if the evidence presented at trial was insufficient. It also found the connection between the defendant s presence at a still and carrying on a distillery sufficiently strong to be rational. 72 Later the same year the Court in United States v. Romano 73 held unconstitutional a similar presumption that a person

8 present at the site of a still possessed the still. The Court reconciled Romano with Gainey by saying that carrying on was a broader offense than possession, and that it was, therefore, rational to infer the former but not the latter from presence. 74 The trial judge in Gainey was careful to tell the jury that it was not bound to reach the conclusion that the presumption called for, 75 while the judge in Romano simply read the statute containing the presumption to the jury. 76 The Court said that an instruction which authorized a finding based on the presumption alone, as the Romano instruction did, required that the proven fact be sufficient alone to support a finding of the presumed fact. 77 Since an earlier Supreme Court decision had held that presence alone was insufficient to support a finding of possession, 78 the defendant s conviction had to be reversed, even though *327 the totality of the evidence was sufficient to support it. 79 By 1969, when the next presumption case was decided, the Supreme Court was coming under attack for disregarding the truth-finding function of criminal trials. 80 Though ordinarily invoked in criticism of decisions limiting police conduct, the emphasis on fact-finding also prompted a re-examination of the process of proof at trial. In 1970 in In re Winship, 81 the Supreme Court held that due process requires the prosecution to prove guilt beyond a reasonable doubt. At this time presumptions were still treated as a means of satisfying, rather than allocating, the burden of persuasion. 82 Therefore, presumptions potentially threatened proof requirements by authorizing conviction on evidence that left more than a reasonable doubt of guilt. This concern was expressed in terms of whether the rational connection test meant that the presumed fact had to follow from the basic fact beyond a reasonable doubt or whether it only had to be more likely true than not true. United States v. Leary 83 and Turner v. United States, 84 decided in 1969 and 1970, were expected to answer this question, but the Court ducked. In both cases, the Court purported to assess the strength of the logical relationship between the proven and presumed facts. It upheld some of the presumptions, saying the presumed fact was true beyond a reasonable doubt, and rejected others because the presumed fact was not even more likely true than not true. 85 The Court in Leary and Turner framed the fundamental issue as the extent of legislative authority to declare one fact sufficient to *328 prove another. It purported to defer to the legislature s judgment, 86 particularly since the questions that the presumptions ostensibly concerned were specialized, even arcane, and beyond the general knowledge of the ordinary juror (or the Supreme Court). 87 In fact, though, the Court deferred very little to Congress and undertook an independent assessment of the facts in each case. In Leary, a statute provided that one could presume from possession of marijuana that it was illegally imported and that the defendant knew this. 88 Turner involved similar presumptions for heroin and cocaine. 89 Turner also concerned the validity of presuming from possession that the defendant purchased heroin or cocaine not in or from a stamped package. 90 To determine whether these presumptions were rational, the Court analyzed evidence not presented to the jury about the incidence of marijuana, cocaine and heroin production in the United States and how users of these drugs behave. It upheld the presumptions about heroin and rejected those regarding cocaine and marijuana. The Court purported to use something like the Leary-Turner approach only one more time, in Barnes v. United States 91 involved the ancient common law presumption that the possessor of recently stolen property is the thief. The Court was dubious that one could conclude beyond a reasonable doubt that possessors are necessarily thieves, but it did not even attempt an empirical analysis. Instead, it relied on the presumption s ancient pedigree to uphold it. 92 The Leary-Turner empirical analysis was unstable for two reasons. *329 Its method was ill-adapted to courts, especially appellate courts, which have difficulty amassing and assessing facts necessary to determine whether the relationship posited by a presumption is generally true. 93 Second, it limited so severely the legislature s authority to declare one fact sufficient to prove another that presumptions lost much of their utility. The Court escaped from this box by recharacterizing the basic nature of due process limits on presumptions, as the next section discusses. III. THE NEW TESTS OF THE 1970S AND THEIR IMPLICATIONS The new emphasis on the trial s fact-finding function and the constitutionalization of the proof beyond a reasonable doubt requirement stimulated study of questions much more basic than how due process limits presumptions. The most important question was what the prosecution was obligated to prove beyond a reasonable doubt. The standard reply, that it must prove the elements of the crime, quickly gave rise to the question of how to distinguish an element from a defense for constitutional purposes. Two major articles of the late 1960s addressed these questions. A basic question in both articles was the circumstances under which a burden of proof could fairly be allocated to a criminal defendant.

9 The first article concerned the substantive criteria for imposing *330 criminal liability on an individual. Its author concluded that liability ought not to be imposed in the face of facts showing that the defendant was not culpable. 94 As a corollary he argued that the prosecution should have the burden of persuasion on any fact pertinent to an assessment of culpability. 95 The second article addressed evidentiary devices that affect burdens of proof and their relationship to the requirement of proof beyond a reasonable doubt. It said that presumptions are like affirmative defenses; both place some burden of proof on the defendant. 96 Its authors argued that due process invalidates any device that shifts a burden of proof to the defendant if this shift could enhance the possibility of convicting innocent persons. 97 Therefore, they argued, an affirmative defense or a presumption may not require a defendant to prove anything that an innocent person might be unable to prove. 98 Though they never explicitly defined innocent, they used it to mean not characterized by all the attributes that the legislature had decided were relevant to punishment. 99 These articles applied the requirement of proof beyond a reasonable doubt to the allocation of the burdens of proof, especially the burden of persuasion. A 1975 case presented this allocation issue to the Supreme Court, and the Court moved toward the analysis suggested in the two articles, with its substantive and functional approach to the burdens of proof. Two years later, when the implications of this move became apparent, the Court retreated, adopting in a second case a constitutional test for allocation of the burden of persuasion tied to the formal structure of criminal statutes. In subsequent based on the Court also created a new approach to presumptions based on the relationship between the structure of criminal statutes and the weight and allocation of the prosecution s burden of persuasion. A new definition of what is essential to fairness underlies these changes: the prosecution must prove guilt beyond a *331 reasonable doubt and guilt must be determined by an independent jury, acting on the basis of evidence presented at trial. A. THE DEMISE OF USING PRESUMPTIONS TO MODIFY THE SUBSTANTIVE LAW AND SATISFY THE BURDEN OF PRODUCTION Three of the cases, Mullaney v. Wilbur, 100 New York v. Patterson, 101 and Sandstrom v. Montana, 102 concern when the burden of persuasion on an element can be allocated to the defendant. Ulster County Court v. Allen 103 applied principles allied to those used in the first three cases to fashion a conceptual structure and new tests for presumptions. Though none of the cases purported to be about constitutional limits on substantive law, together they appear to push the legislature toward a reexamination of the minimum conditions for criminal liability. However, because of limits inherent in the cases and because of the kinds of elements to which statutory presumptions usually apply, major substantive changes probably will not be forthcoming. 1. Limits on Allocating the Burden of Persuasion to the Defendant In 1975 the Court in Mullaney v. Wilbur 104 held that the prosecution must prove beyond a reasonable doubt all elements of a crime and that a rebuttable presumption that shifts the burden of persuasion on an element to the defendant is unconstitutional. Mullaney emphasized the need to justify depriving people of liberty and imposing the stigma of criminality on them. 105 The Court spoke strongly of the role that the burden of persuasion plays in maintaining public confidence in the criminal justice system. 106 The opinion was interpreted by some to mean that the prosecution must bear the burden of persuasion on any fact relevant to an assessment of culpability. 107 The problem with this reading of Mullaney, of course, is that it would require the substantial revision of assignments of the burden *332 of persuasion for affirmative defenses in many jurisdictions. 108 Further, it suggested that due process requires the substantive law to take cognizance of defenses that many jurisdictions did not recognize. 109 Not surprisingly, two years later in New York v. Patterson 110 the Court backed away from these implications. It held that while the prosecution bears the burden of persuasion on all elements of a crime, the formal structure of the statute will determine these elements. Like Mullaney, Patterson said that some constitutional limits on allocating the burden of persuasion to defendants are linked to limits on the underlying substantive law, but Patterson s limits are far more modest than Mullaney s. Patterson subjected the legislature s power to decide what is an element and what is an affirmative defense only to vague and limited constraints. 111 Together Patterson and Mullaney have also come to mean that once the legislature has allocated the risk of error between

10 prosecution and defense by defining elements of the crime and affirmative defenses, it cannot require the defendant to prove still more through the use of a rebuttable presumption. Patterson affirmed *333 Mullaney s holding that rebuttable presumptions which shift the burden of persuasion to the defendant on the elements of a crime are inconsistent with the prosecution s burden of proof beyond a reasonable doubt. 112 In 1979 in Sandstrom v. Montana 113 the Court relied in part on this aspect of Mullaney to hold unconstitutional a jury instruction which said that a person is presumed to intend the natural and probable consequences of his or her acts. 114 Since the jury could have interpreted the presumption instruction as conclusive 115 or as shifting the burden of persuasion on intent to the defendant, 116 it violated due process. Mullaney, Patterson and Sandstrom make sense only at a formal level. With few exceptions, a fact can constitutionally be made irrelevant to criminal liability or it can be an affirmative defense which the defendant must prove. But a fact cannot be an element of the crime that will be presumed once some other fact is proven if the *334 presumption shifts the burden of persuasion to the defendant. 117 The key to applying these cases is determining what the elements of a crime are, and that is determined very formally, from the structure of the statute. 118 Sandstrom s prohibition of jury instructions couched as rebuttable presumptions precludes one traditional use of presumptions: altering *335 the substantive law. 119 Sandstrom, therefore, tends to encourage the legislature to express in more straightforward ways what the state must prove to justify punishing a person. Mullaney and Patterson have a similar tendency. 2. Using Presumptions to Satisfy the Burden of Production In 1979, the same year in which Sandstrom was decided, the Court in Ulster County Court v. Allen 120 reconsidered when the legislature may enact a presumption that declares proof of one fact sufficient to prove another. Though the Court continued to say that the Constitution requires a rational connection between the proven and presumed facts, the meaning of the test was changed substantially. Attention shifted from an assessment of the statute creating the presumption to the jury instruction concerning how to use it. The defendants in Ulster County Court were charged with unlawful possession of guns. A statute provided that a person present in an automobile containing a firearm was presumed to possess the firearm. 121 This presumption illustrates well the problems with the Leary-Turner test developed ten years earlier. 122 Intuitively it seems unlikely that one can say beyond a reasonable doubt that people in cars where guns are found generally possess them. Even if an empirical answer could be found, a court would have difficulty marshalling and assessing the facts. 123 To avoid this problem the Court for the first time divided presumptions into two categories, permissive and mandatory, 124 with a different rational connection test for each. The wording of the jury instruction about a presumption determines whether it is permissive or mandatory. 125 *336 Permissive presumptions are not really presumptions at all. Instead, they are simply inferences drawn from evidence. They do not shift the prosecution s burden of production, 126 and the jury is not required to abide by them. An instruction about a permissive presumption is really an instructed inference. Therefore, the Court said the presumed, (i.e., inferred) fact does not have to follow from the proven fact in the abstract, 127 nor does the proven fact have to be sufficient alone to establish the inferred fact beyond a reasonable doubt. 128 If in light of the evidence as a whole the inference is more likely true than not true in the particular case, the inference is rational and the conviction should be upheld. 129 The opinion did not discuss what would happen if the trial judge found the evidence taken as a whole to be insufficient. The implication of the Court s analysis is that, since a permissive presumption is not a rule of law but merely an inference that may be drawn, it has no force independent of the evidence presented. Therefore, an inference would not save the prosecution s case just because it was expressed as a statutory presumption. In short, Ulster County Court collapsed the question of the validity of a permissive presumption into a general sufficiency of the evidence test. 130 In dicta the Court discussed mandatory presumptions, which the jury must accept and may not reject on an independent evaluation of the state s evidence. 131 Such a presumption must satisfy the Leary-Turner test, 132 that is, the presumed fact must

11 in the abstract follow from the proven fact beyond a reasonable doubt. 133 In theory *337 this test permits legislative control over sufficiency of the evidence issues, but because it is so very demanding, the legislature s domain has probably been eliminated as a practical matter. 134 Moreover, a jury instruction expressed as a mandatory presumption probably cannot survive the Mullaney-Patterson-Sandstrom test, 135 as the next section demonstrates. Ulster County Court s prohibitions of permissive presumptions unsupported by evidence and of mandatory presumptions that are not true beyond a reasonable doubt do not purport to be about the underlying substantive law. Like Sandstrom, 136 however, Ulster County Court tends to push the legislature toward reexamining what the minimum conditions for criminal liability should be. 3. The Minimal Effects of These Cases on Substantive Law Sandstrom s prohibition of rebuttable presumptions that shift the burden of persuasion to the defendant and Ulster County Court s prohibition of legislative presumptions that permit the prosecution to get to the jury with otherwise insufficient evidence have the potential to require major restructuring of the substantive criminal law. Examination of the presumptions that have actually reached the Supreme Court in recent years shows that this is unlikely. 137 The first type of presumption excuses the prosecution from proving elements of a crime that establish federal jurisdiction and which would indeed be difficult to prove. Examples include the presumption in Tot v. United States 138 that a person previously convicted of a violent crime received a gun in interstate commerce after July 30, 1938, and the presumptions in Leary v. United States 139 and Turner v. United States 140 that drugs in the defendant s possession were illegally *338 imported. 141 Today s understanding of the scope of congressional authority makes reliance on these contrived jurisdictional findings unnecessary. 142 Modern federal statutes do not have such elements, 143 and their removal from the older style statutes should be merely a housekeeping task. The second group of presumptions are standardized inferences of culpable mental states from proof that the defendant was associated with an item or performed some act. Examples are the inference in Sandstrom that a person intends the natural and probable consequences of her acts 144 and in Barnes v. United States 145 that one in possession of recently stolen mail knows it was stolen. 146 In such cases the prosecution ordinarily will not need to rely on a formal presumption to meet its burden of production, since even without the presumption the mental state can reasonably be inferred from the evidence. *339 B. JUDICIAL CONTROL OF THE JURY S DECISION-MAKING PROCESS The Supreme Court in Ulster County Court v. Allen 147 and Sandstrom v. Montana, 148 as well as most current commentators, conclude that the due process test for presumptions and inferences must insure that the jury s role as an independent decisionmaker is protected. In Ulster County Court and Sandstrom, as well as two later cases, the Court mandated a highly formal analysis of judge-jury communications that provides only symbolic protection for the jury. A reform proposed by some commentators, to turn presumption and inference instructions into comments on the evidence, might enhance the rationality of the jury but not necessarily its independence. Further, some state courts have been reluctant to accept the conversion of instructed inferences to comments on the evidence because of the legal and practical problems comments can create. 1. The Fate of Jury Independence in the Supreme Court Sandstrom held that if a particular subjective state of mind is an element of a crime, whether a defendant had this state of mind is a question of fact for the jury, not a legal conclusion that follows from proof of the defendant s actions. More generally Sandstrom, together with Mullaney and Patterson, means that the jury must be free to determine whether the prosecution has proven every element of the crime. In this sense the Court supported a shift of decision-making power from judge to jury. But this aspect of the case amounted only to a reaffirmation of a well-accepted principle. 149 In contrast, Sandstrom s test for the validity of jury instructions does little or nothing to free the jury s fact-finding responsibility from effective control by the judge and in fact insulates the judge s communications from any real scrutiny as to how they affect

12 the jury. 150 Sandstrom requires that jury instructions about presumptions be read closely so they can be fit into the proper category. If the judge says, The law presumes... Sandstrom may well have been violated. But the judge may convey the same message to the jury by beginning, You may infer.... Presumption instructions are forbidden; only instructed inferences are allowed. At what point an instruction crosses the line into forbidden territory is not clear, but Sandstrom does say that instructions must be *340 interpreted from the point of view of the jury. If the jury could reasonably have understood that the presumption was conclusive or that it shifted the burden of persuasion to the defendant, it is erroneous. 151 These principles shed some light on one of the ambiguities that remains in the wake of Sandstrom and Ulster County Court: the meaning of a presumption that shifts the burden of production. Many cases, including these two, mention such a device without explaining what it is. 152 The holdings of these two cases, however, preclude shifting the burden to the defendant in the conventional sense. 153 Sandstrom requires that the jury understand that it alone *341 has the authority to determine whether all of the elements have been proven beyond a reasonable doubt, precluding the judge from taking an element from the jury and directing its finding. Ulster County Court prevents the legislature from enacting a presumption that requires the judge to send a case to the jury if the evidence is otherwise insufficient to support a guilty verdict. The remaining interpretation of shifting the burden of production to the defendant is that the judge strongly urges the jury to reach a conclusion consistent with the presumption unless the defendant produces sufficient rebuttal evidence. 154 Such an instruction could easily be interpreted as shifting the burden of persuasion to the defendant and thus is risky to use. Given how easy it is to urge the same conclusion on the jury in the form of an instructed inference, presumption instructions are unlikely to survive except as slips of the trial judge s tongue. The formalism of this analysis does not satisfactorily address the question of how strongly the judge may urge a conclusion on the jury. Assuming that the coercive effect of instructions varies depending on the language used, it is still very hard to believe that jurors hear, much less are profoundly affected by, the kinds of differences that Sandstrom makes crucial. 155 The treatment of instructed inferences in Ulster County Court suffers from a similar flaw. The Court said that an instructed inference does not have to be generally valid because the jury is not required to abide by it. 156 This holding fails to acknowledge the problem *342 created by an instruction that posits an inference which is, in the general run of cases, questionable. Earlier cases 157 and Sandstrom 158 say that if a jury may have arrived at a general verdict by more than one route, each of those routes must be free of error. An inference phrased abstractly and in general terms authorizes the jury to convict based only on the relationship described by the instructions, as the Court has previously recognized. 159 If the relationship is not generally true, the instruction pushes the jury to reach a conclusion based only on the strength of the judge s word. 160 In the three cases concerning the remedy for a Sandstrom violation the Court had an opportunity to develop meaningful limits on the trial judge s communications to the jury. Though these cases produced eleven opinions, none of them deals well with the problem, and the effect of the holdings is to eliminate Sandstrom as an important limit on what judges tell juries while building a monument to jury decision-making. In Francis v. Franklin, 161 decided in 1985, the Court decided *343 how to apply the rule that an erroneous instruction must be read in the context of the charge as a whole to determine if it amounts to a constitutional violation. 162 The majority held that a conclusive or rebuttable presumption instruction is constitutionally erroneous if a reasonable juror could have understood the instruction as shifting the burden of persuasion to the defendant and nothing else in the charge explained the error. 163 Justice Rehnquist, writing in dissent, would have found constitutional error only if it were likely that a reasonable juror understood the instruction as shifting the burden of persuasion. 164 As the majority said, an appellate court cannot be certain whether a given jury pieced together an accurate understanding of the law from all of the instructions. 165 In such cases it favored a test that emphasizes the integrity of the jury s decisionmaking process. The dissenters characterized the majority s approach as creating the risk of finding constitutional error after finely parsing through the elements of state crimes that are really far removed from the problems presented by the burden of proof charge in Winship. 166